January 02, 2009

Iseman Taps First Amendment Expert for Representation in Suit Against New York Times

When it came time for lobbyist Vicki Iseman to pick the team who would represent her in her defamation suit against The New York Times, she turned to the man who wrote the book on suing the press. Really. It’s called “Suing the Press.”

Rodney Smolla, dean of the Washington and Lee School of Law, downplayed the amount of interest Iseman had in him at the outset of her search when asked about it by The BLT this morning.

“It was from what I’ve observed a pretty common way for someone to interview counsel,” Smolla says.

He says his name was just one of several mentioned when Iseman, a partner at Alcalde & Fay, began looking for a lawyer, but with a resume that runs the gamut on issues facing the media, he thinks it understandable that his name turned up on the short list of possibilities.

Smolla has written numerous articles, books, and treatises on First Amendment issues. In 1996, Smolla successfully represented the families of three murder victims in the Rice v. Paladin Enterprises case who sued the publisher of a murder instruction manual used by a hit man.

Iseman’s suit, filed on Dec. 30 in the U.S. District Court for the Eastern District of Virginia, centers upon an article The New York Times published in February 2008. Her complaint claims the article was “reasonably susceptible” of “false and defamatory meanings”; it points to alleged defamatory meanings that she exploited an alleged friendship with Sen. John McCain to help her clients and engaged in an “illicit and inappropriate” romantic relationship with McCain. Iseman says in her suit that she suffered damage to her reputation and her “mental, emotional, and physical health and well-being.” She has asked for $27 million.

Smolla, who will be working with W. Coleman Allen Jr., a name partner at Allen, Allen, Allen, & Allen in Richmond, Va., says Iseman’s case offers a chance to “reinforce the core principles of what is legally protected journalism” by showing that The Times’ article is defamatory in its alleged claim of an inappropriate relationship.

“That is the only sensible way to interpret the article, and within hours of it running, news organizations were reporting the issue in that way,” he says.

Smolla says that the case might also bring up the tangential issue of whether the paper will be required to disclose the identities of two anonymous sources who told the newspaper about the alleged relationship.

“We will find out in the discovery process how The Times put this story together, who the sources were, and what they said. It’s possible that the issues involving the confidentiality of sources will be litigated,” he says.

Smolla says that in addition to his work as the dean of the Washington and Lee School of Law, he usually takes on “a case or two a year.” He has represented both media defendants and those suing the media. “I look at the issues on a case by case basis,” he says. “There are times when the better societal benefit is struck on the side of the press, and there are times when the better societal position is struck on the other side. But when a journalist crosses the line and damages an individual’s reputation and the integrity of public discourse, it is appropriate for the legal system to provide redress.”

UPDATE (4:01 P.M.) Abbe Serphos, a spokeswoman for The Times, said in a statement, "We fully stand behind the article. We continue to believe it to be true and accurate, and that we will prevail. As we said at the time, it was an important piece that raised questions about a presidential contender and the perception that he had been engaged in conflicts of interest."